There is already some limited protection against religious discrimination under the provisions of the Race Relations Act 1976, where it can be shown that a racial group shares a common religion. So Sikhs and Jews, for example, are protected whereas Muslims and Rastafarians are not although there have been some successful claims by Pakistanis, Bangladeshis and Indians under the Act where indirect race discrimination has been based on racial groupings.
This means that many faith groups are not protected by the law in the UK and although the vast majority of the population remains Christian, there are a number of citizens who could gain valuable new rights under this legislation.
However, employers may greet the new rules with less enthusiasm, involving as they do a steep learning curve. In effect it will be unlawful to discriminate against or harass employees on the grounds of religion or belief when recruiting, over terms of employment, opportunities during their time working with the company and on termination of employment.
To add to an already complex legal situation, discrimination may be either direct or indirect, and may be alleged by current staff or ex-employees, contract workers or ex-contract workers. Direct discrimination is relatively straightforward. It occurs where a person discriminates against another on the grounds of religion or belief by treating them less favourably than they would treat others. Indirect discrimination in the workplace is more complicated. There are two elements: first, that a comparison has been made between the person who alleges religious discrimination and others who do not share that persons religion or belief; and second, that the application of a practice places the complainant at a particular disadvantage when compared with these other persons. An example of this would be where an employer refuses one employee time off to worship and grants the request to another employee.
But discrimination doesnt stop there. There are other, perhaps less obvious issues that may require careful handling in the future. Subsidised canteens that do not cater for all religious requirements is one example. Other potential minefields include religious messages such as the advertisement of carol services on noticeboards, requests for prayer facilities in the workplace, and even rules relating to hairstyles.
One of the challenging areas of the new legislation will be the definition of religion or belief, as this will be a matter for tribunals and courts. Belief refers to areligious or similar philosophical creed but does not include a political dogma. Relevant factors may include collective worship, a set structure of belief patterns, a sense of history and a profound set of principles that affect a way of life or view of the world.
This lack of a clear definition of belief may produce confusing results when it comes to claiming harassment on the grounds of religion. This refers to behaviour perceived by the complainant to violate their dignity or create an intimidating, hostile or degrading environment. The trigger for litigation will therefore rest with the employee, whose own subjective assessment of a set of circumstances will be all-important.
Even where a working relationship has terminated, liability under the legislation will continue if a worker has been subjected to detriment or harassment. Problems may occur in deciding when the working relationship ended, especially where there is a complex three-way arrangement between the worker, the agency or supplier of that person and the firm that has used that workers services.
An employer may also be liable under the legislation as a result of its employees actions. Education and training will be essential, although difficult given the current lack of definition of religion or belief.
In essence, the new rules will require employers to examine their working practices closely to check that they are still appropriate in an increasingly multi-cultural society.
janet.gaymer@haynet.com
Janet Gaymer is senior partner at Simmons & Simmons
